Motion filed to dismiss Walton Customary Use case

Tom McLaughlin @TomMnwfdn

Thursday

May 9, 2019 at 5:53 PMMay 9, 2019 at 5:53 PM

Nobody in England had even heard about surfing, much less tried it, back on Sept. 3, 1189 when King Richard I was crowned.

For that reason, among several others, Walton County’s claim that its beaches have been enjoyed by all from “time immemorial” falls flat, according to a motion to dismiss the county’s legal effort to have its beaches declared public based on Customary Use doctrine.

The motion to dismiss the Customary Use lawsuit was filed Tuesday in Walton County Court by attorney Ted Borowski on behalf of approximately 100 beach property owners and homeowner association members.

Borowski said other attorneys with clients opposed to Customary Use have already signed onto the motion.

It states that when Walton County listed nine “specific and individual uses” of its beaches as those for which the public is entitled to have access to all dry sand areas, its attorneys failed to state how those uses can be considered “ancient,” much less, “continued from time immemorial.”

One of the key elements of proving Customary Use exists is showing that the property in question, in Walton County’s case its beaches, have been utilized by people, uninterrupted, for as long as mankind has been around.

The motion puts the date of England establishing “custom as a source of law” at the date of King Richard I’s coronation, or Sept. 3, 1189.

“Surfing, (one of the nine individual uses cited by the county) did not exist in England until, at the earliest, 1769,” the motion states. “So it can’t be Customary Use in England under English Common Law, much less under Florida law.”

The motion also argues that Customary Use doctrine has no place in the United States which, in 1776 “expressly rejected” most English laws as “repugnant.”

“The courts from a hand full of states, including Florida, have attempted to resurrect the doctrine of Customary Use to solve the modern social problem of access to beaches,” it states.

It claims the Supreme Court case most often cited to defend Customary Use, City of Daytona Beach v. Tona-Rama, “never discussed whether the doctrine of Customary Use was consistent with the U.S. Constitution.”

The motion states Florida courts have twisted Customary Use doctrine as applied in England to their own purposes.

Proper analysis of the Constitution and Florida States “must result in the conclusion that the doctrine is unconstitutional and non-applicable,” the motion said.

“The Founding Fathers viewed a government’s taking of private property for public use with disfavor,” the motion states. “They enacted the Fifth Amendment to prevent government from confiscating private property for public use without compensation.”

The motion also argues that mankind’s relationship with the oceans has not always been as close as proponents of Customary Use let on.

“By some accounts the beach was not a place of recreation until the 19th Century … through the 18th Century the sea stirred fear and anxiety into the population’s imagination … a forbidding and dangerous place,” it said.

It also quoted from Pulitzer Prize winning author Jack Davis’s book “Gulf – The Making of an American Sea” in arguing against continual and uninterrupted use of the beach.

“The beach we know today — where people lie in the sun, play in the surf and look out on the infinite sea horizon — had to be invented,” Davis wrote.

Borowski said that the arguments put forth in the motion represent the work of several people.

“It’s not entirely my product,” he said.

Several of the motion’s arguments, including the questions of constitutionality, are “similar” to those put forth in other Customary Use cases filed in Federal Court, he said.

“No court has ruled on the constitutionality issue as of this point,” he said.

Attorney David Theriaque, who is representing the county in its case for Customary Use, could not be reached Thursday for comment.